3. JUDICIAL REVIEW: PRELIMS & REMEDIES

Question 1

JUDICIAL REVIEW: PRELIMINARIES

Answer 1

Def: A method of ensuring that public bodies exercise their power properly.

The following PRELIMINARY ISSUES must be addressed in order to determine whether C can bring a JR claim:

• AMENABILITY
• PROCEDURAL EXCLUSIVITY
• STANDING
• TIME LIMITS
• OUSTER CLAUSES

Question 2

JR: Prelims - AMENABILITY

Answer 2

ONLY public bodies are amenable to JR (Civil Procedure Rules 54.1). “Public bodies” includes the following:
BODIES CREATED BY/EXERCISING POWER GRANTED BY STATUTE/DELEGATED LEGISLATION
- Local Authorities
- Statutory Bodies
- Statutory Tribunals
- Inferior Courts

PRIVATE BODIES EXERCISING A PUBLIC FUNCTION ( DATAFIN; CPR 54.1(2)(a)(ii))

• TEST: substantially i.e. “but for” the existence of the private body, would a public body be performing the role?
• – if YES, private body WILL be performing a public function.
• REGULATORY bodies will usually be deemed to be exercising a public function (R v Advertising Standards Authority ex p Insurance Services; R v Bar Council ex p Percival)
• The following have been deemed NOT to be exercising a public function:
• – Sporting Regulators (R v FA ex p Football League; R v Jockey Club ex p Aga Khan; R(Mullins) v Appeal Board of the Jockey Club)
• – Religious Bodies that deal SOLELY with religious matters (R v Chief Rabbi ex p Wachmann)

CONTRACTORS WHERE EITHER (R(A) v Partnerships in Care):

• the statute governing the statutory body expressly extends to contractors, or,
• the contractor is itself regulated by statute
• – private residential homes have been deemed NOT to be exercising a public function (R v Servite Houses and Wandsworth ex p Goldsmith; YL v Birmingham CC)

Question 3

JR: Prelims - PROCEDURAL EXCLUSIVITY

Answer 3

GR: ONLY JR actions should be brought against public bodies (O’Reilly v Mackman; Cocks v Thanet DC). Private law actions against public bodies will constitute an abuse of process.

• EX 1: Where the relationship involves a private contract with the public body (Roy v Kensington and Chelsea FPC), regardless of whether the private contract is merely incidental to the relationship or not (Mercury Communication v DG Telecommunications)
• Ex 2: JR may be used as a defence in a private law claim (Wandsworth LBC v Winder; Boddington v British Transport Police)

In the event that it is unclear whether the case involves public or private law, C should bring a JR claim (Trustees of Dennis Rye Pension Fund v Sheffield CC)

Question 4

JR: Prelims - STANDING

Answer 4

C must have “sufficient interest” in the case in order to bring a claim in JR (s.31(3) Senior Courts Act; CPR 54) and (Fleet Street Casuals)
Whether C has sufficient interest will depend on whether they are:
- an INDIVIDUAL
- an ORGANISATION

“sufficient interest” means the case has strong merits.

Question 5

JR: Prelims - Standing: INDIVIDUALS

Answer 5

Individuals AUTO have sufficient interest where they are DIRECTLY AFFECTED by the subject matter fo the case (a ‘victim’, s.7(3) HRA 1998; R v SoS HD ex p Venables)

Individuals who have sufficient ‘concern’ for the issue at stake MAY have sufficient interest depending on the circumstances (R v SoS Foreign and Commonwealth Affairs ex p Rees-Mogg cf. R (Bulger v SoS HD)

Question 6

JR: Prelims - Standing: ORGANISATIONS

Answer 6

NO REQ that the organisation bringing the case has members who have been directly affected (R v Foreign Secretary ex p World Development Movement). Though being affected or having members that have been will STRENGTHEN their case (R v SoS HD ex p Greenpeace (No. 2))
- Bodies set up for the specific purpose of challenging a decision WILL NOT be granted standing (R v SoS Environment ex p Rose Theatre Trust)

Factors to be considered when determining the standing of an organisation (ex p Greenpeace (No. 2)):
- the REPUTATION of the group
- the EXPERTISE of the group with the issue at hand
- the size of it’s MEMBERSHIP
- whether members have been AFFECTED
(ex p World Development Movement):
- the IMPORTANCE of the issue at hand
- the MERITS of the case
- the LIKLIEHOOD OF ANOTHER challenger being able to bring the claim
- whether the RULE OF LAW is at stake
(Equal Opportunities Commission v SoS Employment; R(Corner House Research) v Director SFO):
- the NATURE and ROLE of the group

Question 7

JR: Prelims - TIME LIMITS

Answer 7

A JR claim must be filed:

• PROMPTLY (CPR 54.5(1)(a)), AND
• at the very least, NO LATER THAN 3 MONTHS after the grounds for claim arose (CPR 54(5)(1)(b))
• – this time limit does not apply when JR is being used as a defence in litigation (Wandsworth LBC v Winder)

The court may extend the time period (CPR 3.1(2)(a)) in EXCEPTIONAL CIRCUMSTANCES (R v Dairy Produce Quota ex p Carswell), such as situations where the point at which the public body’s decision was made in UNCLEAR (Clark v University of Lincolnshire and Humberside)

Question 8

JR: Prelims - OUSTER CLAUSES

Answer 8

Def: a clause in a statute which attempts to prevent the operation of JR to the whole or part of that statute

Ouster clauses have NO effect unless their wording is sufficiently CLEAR AND PRECISE

• courts tend to oppose them (Anisminic v Foreign Compensation Commission)
• Courts will NEVER permit a total OC to exclude JR (R v SoS HD ex p Al Fayed)

PARTIAL OCs may be permitted
- EG where they reduce the time limit for JR < 3 months (Smith v East Elloe RDC: R v SoS Environment ex p Ostler; CPR 54.5(3))

OCs preventing a court from JReviewing a decision will contravene Art 6 ECHR (Matthews v SoS Environment, Transport and the Regions)

Where an alternative statutory appeals process (R v IRC ex p Preston) or an alternative method of resolution exists (R(Cowl) v Plymouth CC) such methods should be used PRIOR to bringing a claim in JR.

Question 9

JR: OUTCOME AND REMEDIES

Answer 9

Following a successful JR claim, the following remedies may be available. These remedies are ENTIRELY AT THE DISCRETION OF THE COURT (Walton v Scottish Ministers):

DAMAGES
- compensation for losses suffered as a result of a public authority’s decision or course of action

DECLARATION
- the court makes a statement (not an order) on the rights of various parties or the meaning of the law.

INJUNCTION

• this can be granted to prevent a public authority from acting in an unlawful way
• an injunction can be MANDATORY or PROHIBITORY and the courts can also grant INTERIM injunctions if necessary

PROHIBITORY ORDER
- this prohibits a public authority from executing its order or decision

MANDATORY ORDER
- this compels a public authority to take a certain course of action

QUASHING ORDER
- this nullified a public authority’s decision with the effect that the public authority must make the decision again.